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limited even in stronger terms than mine. He is some deformity. The alledged aggravation is, that forbidden to enter Florida unless under certain spe transgressed where the local government existed and cial circumstances which rendered it indispensable; was felt--but was I not informed that the local gobut I was not forbidden to land on the Spanish terri-vernments were in co-operation with my own efforts? tory. General Jackson was ordered to respect the that they ranged themselves on my side as allies? and local authority wherever it existed and was maintain- could I conceive those wretches, with cannon on the ed. I was ordered to respect the local government rocks of Foxardo, to be the local authorities? could I *wbererer it exists and is felt.” Thus the only dir respect them as such» When I approached the spot, ference between our orders in this point, is to be found I learned that the alcalde, a very inferior magistrate, in the difference between a government's existing and and one who by no means represents the regular go being maintained, and its existing and being felt. There rernment of the island, was either in aetual league were only these two restrictions: Ist. That the go- with the pirates, or else he was overawed by them. (it vernment should exist, and that it should be felt. In is immaterial which), that the authority under which this language something else is evidently intended it was pretended that he had acted, was that of the than a mere formal exercise of sovereignty. It does pirates themselves. What was the presumption, I not refer to a sovereign de jure and in name only; but was naturally lcad, nay compelled to draw? 'It was to that which exists to some practical pu* pose. But this that mob and magistrate were all allied together: what was the very purpose for which such a govern- and the matter then comes simply to this. I was ment should exisi?" so far as I was concerned, this ordered to respect the local government where it expurpose was to restrain pirates and aid me in the isted and was felt; I had all reason to conclude that suppression of piracy. Should I then suppose, was these persons were acting against it-they were cerI bound to beleive, that the government, in the sense tainly committing hostilities on an American squadof my instructions, "existed" and "was felt," where ron who were allies of the local government. 1, those claiming to be its organs, acted in the very face therefore, asserted and enforced the authority of that of such a purpose? Was I bound to respect as the government against its own corrupt citizens, who local government of Foxardo a mob on the rocks of were engaged in violating their duty as allies. the harbor who were training guns upon me? Could I I conclude this part of the subject with the expresview as such those who had inveigled and perfidiously sion of my confident expectation that the court will seized my officer? Could I beleive this, when the uni- be of apinion, that I was not only justified in going as versal opinion throughout the neighborhood was, that far as I did, but bound to do so--that, had I forborne, Foxardo was the notorious haunt of pirates-their I could not have escaped with impunity-or had I hiding place, their refuge, from whence they sallied been acquitted by others, my own conscience would forth to commit depredations on the high seas, and have condemned me as having betrayed the high prey upon the unprotected commerce of my country? trust and endangered the important rights and priviit seems, then, very clear, that the restriction of the leges committed to my keeping. government's existing and being felt, was not greater I shall now take another view of the subject.restriction than that in the instructions before issued Hitherto I have confined myself to the inquiry, what to gen. Jackson. The sense of this expression may my instructions authoroized me, what they they be still farther illustrated by referring to a former forbade me to do. But, suppose I bave been wholly message of the president of the United States to con- mistaken in my interpretation of them; and that, congress, at the same session with that last quoted. trary to my beiter knowledge, I was bound to presume (Here he read a passage in which the president that all the persons I found at Foxardo, were acting speaks up the government of Spain over part of her under the authority of the local government-What. provinces being "scarcely selt," &c.)
follows? Have I committed any act of military diso This mode of describing the local government bedience of which a court martial has power to take which I was to respect, is then to be interpreted by cognizance? I contend that the general instructions, the language used by the president himself whose issued by the government, are not included in the words I am bound to observe with due regard. He meaning of that article of war which speaks of the describes the cessation of the Spanish government in disobedience of the orders of a superior officer; that Florida as a state of things in which it was 'scarcely article has respect to military orders, proceeding from felt.” It was felt, however, at that very time in the a military source, and does not apply to the governFortress of St. Marks-for that fort was able to sup- ment of the United States. port a seige, and did not capitulate but by an instru The power of the government of the United States Inent containig 14 distinct articles. I ask, was the over its naval and military officers is two-fold; it may local government "felt" to this extent at Foxardo punish them by a court martial, or, in a more sumwhen i went there? The president and his secretary mary manner, by recalling them from their command; both issued a justification of general Jackson in going but if there be a true distinction between orders isto St. Marks. Had I gone to St. Johns, the capital sued by government and those by a superior officer, had I beseiged the fort there—had I compelled the then offences against the former do not fall to be tried governor to subscribe a just agreement to restrain by a court martial--but by an act of the government these inhuman wretches, (far worse than any savage itself. That government, when it has given instrucwho roams the desert), I perhaps might also have tions to an oficer, is itself the best judge how far he. been praised. But I stopped short-I stopped at a has obeyed them; and if he has in any dogree departpoint where the government was far less felt than at ed from them, it is best able to determine with what St. Marks: for going even thus far l am called to ac- motive he has transgressed. Now, it is a thing very count General Jackson went far beyond me, and intelligible to all men how an officer may disobey : be is vindicated and applauded.
positive order given him in a different case; but it I have before adverted to the various disguises em- is not so possible to understand how he can directly ployed by the pirates, I use this fact to justify the disobey an order which clothes him with discretionary conclusion that'i formed, that Foxardo was, in truth, power, to be executed in a variety of cases. He may a haunt of these freebooters--that the government of mistake but cannot disobey; if, from a corrupt motive, Spain was there only dominal, being, in effect, su- from malice, or evil intent, he violates his instrucperseded toy piratical power and influence. I was tions, he commits, I own, a high offence; but whether not bound to respect these disguises. I knew that this is strictly a disobedience of orders need not now such existed-thai they were common-but I held it be particular discussed, as it is not even surmised, my duty to seize these modern proteuses, to reduce so far as I understand, that I have acted from any tbcon to their patural shape, and expose their loath- ! such motives in what is now laid to my charge; it is,
on the contrary, admitted, as I apprehend, that I didyed this court, from a tribunal of criminal jurispruact from my best judgment. Refer again to the dence, into a sort of master of ceremonies, to sit in terms of my instructions and see if they are in terms judgment upon points of good-breeding, and 10 proso positive that I may be said to have disobeyed them: nounce on the delicacy of certain habits and apSee if they do not confer upon me a wide discretion pearances. His own ideas, and the practice of mi-refer to the clauses which state the end and purpose litary law in conformity to them, was, that every miof the expedition entrusted to me--see it all those litary offence brought before that court must be declauses, which lay down the doctrine of the law of termined by some positive and established rule of nations and of war, and all those which leave me to action, and designated and defined by some specific decide whether the local govenment, in any given in- law. For reasons which had been suggested by his stance, exists and is felt, do not necessarily imply the counsel, the accused had, in an earlier stage of the exercise of a discretionary power? Now ihere is no proceedings, been induced to yield to the force of precedent where a discrelionary power has been those observations which lay against this cbarge and given, and he who received it is afterwards called to its specifications, on account of the vague and indeanswer for disobedience of orders—disobedience of finite terms in which they were expressed. His oborders means this, and nothing else than this, either jections, however, had met with a fate which they illthe doing what is positively forbidden-the omitting deserved. For the most part, they were met by the of what is positively commanded, or the wilful and argumentum ad hominem-and as he considered that, corrupt pervertion of a discretionary order. in the imputations which this reply appeared to have
The Icarned counsel having thus closed the first cast upon him, his credit and character were more head of the defence, and feeling much exhausted, or less involved, he should now take an opportunity suggested to the court the propriety of an adjourn to correct some of the strange and unsustainable ment till to-morrow, but professed himself ready to opinions which had been thus induced. proceed if the court so determined.
In the first place, there had been much zeal dis. The court thereupon adjourned to tó-morrow morn- played in the manner in which was urged the tening at eleven o'clock.
dency of those objections which he had consented
that his counsel should exbibit, to make a comproCONTINUATION OF COM. PORTER'S DEFENCE. mise with honor. The natural inference was, that FROM THE NATIONAL JOURNAL.
he would be content to obtain an acquiital of the Saturday, August 6.-The court met at 11 o'clock. charges preferred against him, at some cost of honor,
CHARGE 20.-"Insubordinate conduct, and conduct There appeared to him to be something illiberal in unbecoming an officer."
this insinuation. He had always understood that it Specification 1-That he wrote and transmitted was never the duty of a prosecutor to pursue an arthe president of the United States “a letter of an in-gument of this character. The law was that on which subordinate and disrespectul character, on the 17th the prosecutor was bound to rely, and it was usual April, 1825," and to the secretary of the navy, "var for him to submit himself to the powerful friendship rious letters of an insubordinate and disrespectful of the law. If any odium attached to the arguments character, viz: on the 30th January, 16th March, 13th which had been urged at any former stage of the proApril and 14th June, all in the year 1825; thereby ceedings, he was content, himself, to bear it, as well violating the respect due to the head of the departs as any which might accompany the present. He had ment, impairing the discipline of the service, and felt sore and indignant at the illiberal inferences getting a most dangerous and pernicious example.” which had been drawn from the course he had adopt
Specification 2d-The publication in commodore ed, but had determined to postpone any commentary Porter's pamphlet, of the proceedings of the court of upon them, until the moment when he would be alinquiry, after the court had terminated its inquiries, lowed the full latitude which his defence would ofand had transmitted its report to the secretary of the fer. He had thus far challenged the utmost industry navy, and before the executive bad authorized the to rake up against him materials for crimination; and publication of the proceedings.
he should not now shrink from the task of meeting Specification 31-"An incorrect statement of the them. proceedings of the court," in the same pamphlet. Another charge, from which he was desirous to.
Specification 4th-The insertion in the said pamphlet, clear himself, was the supposition which had been of various remarks, statements and insinuations, thrown out, that he had been anxious to get rid of not warranted by the facts, highly disrespectful to the charges, and had made some kind of application the secretary of the navy and said court of inquiry.” to have them withdrawn. The only grcund on which
Specification 5th-That he"did, in the same publica- this supposition could, by any possibility, have been tion, (the pamphlet before referred to), without any founded, was an expression towards the close of the authority or permission for that purpose, make pub- argument of his counsel, in which he had made use of lic, official communications to the government, and the phrase-"if the judge advocate was of opinion official correspondence with the government; and, on that ihe charge could be sustained, although he hoped other occasions, between the 1st October, 1924, and that he would now consent to abandon it.” lle the 15th June, 1825, without authority or permission knew of nothing else which could have given occasion therefor, make public, orders and instructions from for the impression to which he referred; and he prothe government, and official correspondence with tho tested against any thing in this remark, being congovernment."
strued into a request for mercy. In reply to this supThe counsel for the accused then proceeded with posed solicitation, the judge advocate had replied, the defence The second charge and its specifica that he had no discretion which he could exercise on tions had been to him a source of no inconsiderable the subject, and, of course, no power to withdraw thie dificulty. He had been, throughout the whole of the charge; that it emanated from the government and investigation, at a loss to determine how to treat by the government only could it be withdrawn. He them. He had come to the conclusion that they con- neither imagined, nor had he wished, by any expresrained no charge of any crime which could be brought sion he had used, to create a belief that, in addition under the cognisance of a court martial. There was to the arduous duties which he had to discharge, this nothing which could be construed into an imputation discretionary power has been added to the weight im- . of guilt: nothing calculated to attach to his name posed upon the learned judge advocate. any thing of a dishonorable or immoral character. Again, there was a misunderstanding with respect They had been introduced by a strange abuse of to another part of the proceedings, which he was desrms. He objected to a phraseology which convert- I sirous to correct. A misapprehension seemed to res!
on the mind of the judge advocate, with respect to the and the code by which that branch of the military original request which he, (the accused), had made department is governed, is now fixed upon estab for a list of the charges and specifications. It was lished principles. McArthur says this digested law stated by the julge advocate, that he, (the accused), makes it necessary that offences should be enumerathad nerer been denied a copy. lle admitted that ed. The military law, on the contrary, does not pro jie was originally furnished with a copy, but he found ceed from parliament: but instructions which have, an error in it, which rendered it necessary that he to a certain extent, the effect of articles of war, are should apply for another. It was answered, that the authorized to be, and frequently are, issued by the error only consisted in the difference between 13 and crown, and by these courts martial are bound. It is 39, in the dates of two letters. He contended, how- agreed on all hands that the latitude given to militaever, that this was not a difference of that trivial ry, far exceeds that given to naval courts martial la wharacter which was imputed to it. Where all the vol. 1, of McArthur, p. 20, the origin of the varal ar References were to dates, a single error of this ticles of war is given, as well as a succinct history of kind changed the entire order of the references, and the mutiny act, and also the military articles of war. threw the whole into confusion. If the date of a sin. In the same passage, the author proceeds to show that Ele letter was incorrect, where there was nothing but the naval code is established by act of parliament; but slates to rely upon, it might lead to a train of errors in military law, the crown is the great source. As to vf the most important consequences. He protested, capital offences, they are provided for by the mutiny therefore, against this error being set down as a mere act. The crown also, may, by pripted regulations, difference in the date of a letter between the 13th and prescribe additional punishments, not extending to 30th.
life and limb, (see page 43.) Both the English codes, The accused then begged leave to refer to the origi: indeed, differed from ours, in making punishment, nal grounds on which the objections of his counsel for immoralities and ungentlemanly conduct, discreHrad been founded. It was matter of importance that tionary with courts martial. Again, Tytler, in his he slould know on what ground he stood. It was 2d chapter, on the authority of courts martial, states important for him to understand whether he was here that the act of parliament authorizes the crown to lar to answer to some grave charge affecting his own down regulations, not extending to life and limb. honor, and the interest of the service and of his coun. Here Mr. Tytler has explained his own meaning, try; or whether it was merely to render an account when he declares that other offences are punishable for having infringed some of the minor rules of de- by courts martial, thaa those which are laid down by corum, and violated some undefined courtesy of life. the articles of war. This is confined to military He apprehended, both from the advice of his counsel, courts martial; for McArthur denies the inference, and the lights which his own judgment afforded, that, as regards the nary. He read from Tytler the lanbefore the court could pronounce any sentence in guage which had been quoted by the judge adve. Huis case, it would be necessary to show that the of- cate in his argument to show that it was only to be fence, with which he stood charged, came within the considered as a corollary of what he had before statineaning of some positive rule of action, prescribed ed. He next briefly viewed the statement of Tytler by a known and fixed law.
as to the legislative powers said to be vested in courts It has been contended, however, on the authority martial. Was this a power which enabled them to of a loose expression of an eminent writer on military define crimes as coming within the cognizance of Jaw, that it was not necessary, in order to bring of military law? He considered the language of Tytlet fences within the cognisance of a court martial, that as, perhaps, incorrect in this particular in the are they should be defined by a specific law; but that the gument which the counsel for the accused had made prosecutor has nothing to do but to lay before the in a former stage, the distinction between legislative court certain facts and allegations, and that it then and judicial character was stated. There are in our remains in the breast of the court to define the offence military law several general enactments; such as itself, as well as to prescribe the punishment. This "conduct unbecoming an officer," in our military aroctrine is founded on a work on martial law, by Tyt- ticles of war, and fraud and other scandalous conduet, ler, of which a practical digest has been made for the in our naval articles. The facts which constitute rose of our military system, by general McComb. IIc | these offences are not defined; but the discretion, by confessed that he was struck with astonishment when which courts martial were to be bound, on finding he heard this reference made, since he had looked guilty on these charges, was equivalent and in unison over all the other authorities, all the best writers on with the power vested in civil courts. the subject, and found an uniform agreement of opi It appears that courts martial have a greater range nion that, in trials before courts martia!, the offences of discretion than courts of common law. They are, charged must be set forth with as much precision, as in the highest sense, courts of honor; but there is a in trials before civil courts. To show this, he would limit to their discretion. The gravity of the offence refer the court to Adye's treatise on military law, is defined by the law under which they act. By the page 62, where this doctrine is laid down; and the law in England, they must find an officer guilty of saine Nir. Tytler, whose authority, to prove the con conduct scandalous and unbecoming the character of frary, was relied on by the judge advocate, is equally an officer and a gentleman_so, in our law, they must Explict on this point, as might be seen in pp. 216, 217, find guilty of conduct unbecoming the character of an of his work in the digest of general McComb, the officer. This brought him to consider another of tho same doctrine is laid down with equal precision. It navy articles of war, (the 32), to which a wide conwas impossible for the most cursory observer to como struction has been given. This article states that all pare these authorities with the doctrines which had I rrimes which had not been specified in the preheen laid down by the judge advocate, without per ceding articles, may be tried and punished accordceiving that they were in decided opposilion to eaching to the laws and customs, in such cases, at other. He did not deny that the judge advocate had sea. This has been relied on, as an authority of suf quoted the words of the author to who!n he referred;ficient weight to justify the looseness of the specificabut he had misapplied his words. They are suscepti- tinng. This article has been borrowed, with only a ble of a plain and easy explanation. Mr. Tytler is small change, from the corresponding article in the Speaking of military courts martial in England!, hut bawal code of Great Britain, which will be found in Berio reference to thinse of the nary. The distinction the appendix of the 1st vol. article 36, naral articles Hociveen the military and naval system is an anomaly of war. The only difference is, the British artirle says j' Esiglish law. Nival legislation has bee!, session in such cases used at sea;" while, in ours, it sues, váter session, the suljert of parliamentary discussion, such case, ai sea."
The first circumstance which struck me, on hear-, nishable, under the articles of war. Is a disrespect ing this quotation, was the utter absence, as he un- to the secretary of the navy a crime under this act? teratood, of any sustaining authority among all the The act of congress, on this subject, had been framwriters on martial law. There have been five wri- ed with more than ordinary care and caution, and all ters referred to in the course of the proceedings, and those persons are excluded from its provisions, tonot one of these refers to this article as operating to wards whom a disrespect cannot be regarded as a extend the power of courts martial. There is none military offence? He contended that neither the sethat even mention it-not one alludes to it as giving cretary of war nor the secretary of the navy, could any extension to the power of courts. Neither in En- be cousidered a commanding ofácer. The term, in gland, nor in this country, has any charge ever been the articles of war, applies only to such military comprefered under this article; it appears to have been manders as are in the service, and through whom the merely regarded as having reference to those minuter orders of the departcents are conveyed. The seoliences which are likely to occur at sea, and do not cretaries can only be regarded as civil officers, as come under the notice of a court martial. How then members of the president's councils. The president does this article extend the powers of courts martial to himself is, by his official station, a military, as well as the legislative limit which has been contended for? a civil officer, and, of course, the military superior He here quoted the language of the article. Although of every officer in the service. Yet, he was of opinion the article does not describe the terms and forms, it that this provision would not have extended to him, evidently refers to something which dces describe had he not been expressly named; but only to such both, and that is the laws and customs at sea. Here officers as were engaged in actual and active comthen we have something which harmonizes with the mand. If, then, this disrespect is not cognizable by common or statute law of civil life. There appears the articles of war, it would have been strange if to have been a sort of statute law for the navy, hand- congress bad wrapped round the secretary of the ed down from age to age. A rule exists which, once navy, a more sacred and inviolable protection. Disascertained, fixes the crime as absolutely as though respectful conduct and letters are terms wholly unit was specified in a distinct article. The judge ad- known to the articles of war. The only words there Focate has referred to the crime of murder as not are “mutinous" and "contempt.” He need not show being specified by any particular statute, and as not the difference between these expressions; contempt requiring any other enactment than that which de- is the middle expression between mutiny and disrefines the punishment. The argument of the counsel spect, which may be regarded as the two extremes. for the accused must have been strangely misunder. It is a qualified disobedience. It would take up too stood, if it was supposed that he intended to main- much time of the court to illustrate this by the many tain the opposite of his position. There was an un- instances which were within reach, and he would written law which, on this point, was solicitly de- therefore refrain. finite. But all that could be said in reference to this 32d article is, that, instead of defining and enumerat- must be contempt to a superior officer. In all the
But to whom is this contempt to be offerod? It ing the crimes to be tried and punished, it refers to naval articles of war, this contempt is only cognizasomething by which they are described, as definitely ble when it is offered to an officer in the execution of ag is required by the common law. It would there. his duties, between whom, and the persons guilty of fore be incumbent on the prosecution to show, not it, there is an immediate connexion. The secretary only that the crime which is charged exists, but that of the navy, although at the head of the department. itis one which is punishable at sea. He must show, communicates all military orders, in the character of by oral or written testimony, what are the uses at a counsellor and organ of the president, and does sea. He must bring forward naval commanders of not, therefore, stand in that immediate relation with experience to testify to the laws and customs to the members of the service. which they apply. On this subject the accused would make this broad
In addition to the positive and conclusive evidence concession. If a charge is made under the 3d arti- which shows that offences must be prescribed as ele of war, it matters not what the specific offence is coming within some specific law, there are other it is left to be defined by the court; the only thing points in the argument of the learned judge advocate, requisite is that it be brought up to the standard of on which he desired to make some observations: the article; that it must be scandalous or fraudulent The judge advocate remarks on the right of the acconduct, "unbecoming the character of an officer." cused to receive a list of the charges and the witThis brought him to consider, and he would do it in a
nesses. It has been the uniform practice of courts collective form, in order to save the time of the court martial to furnish such a list. But the furnishing --those parts of the charge which impute direspect does not depend on this custom, but on a positive to somebody. “Letiers'or à disrespectful character." law, by which it is enacted, in terms, that the charges Some of these letters are addressed to the president and specifications shall be served on the prisoner, of the United States, and some to the secretary of the at a reasonable time. As writers of authority have navy, but nothing is said as to whom the disrespect is determined what a specification shall embrace, and offered." Nor, in default of this specification, is there to what it may extend, it is as clear as any principle any circumstanice which can lead to a discovery as to or practice of common law. It must specify the prewhom this disrespect is offered. He had before cise time and place, and circumstances, so as to show stated the distinction between the naval and military under which of the articles of war the offence is cogarticles on the subject of disrespect; and he would
nizable. now take the ground, that, before the court can try This part of the argument of the judge advocate and punish this alleged offence, it must be shown to was somewhat curious. Tytler and others have been be one coming under the articles of war. On the quoted to prove that, in England, this is not essential, subject of disrespect or contempt to a superior offi- but, on the contrary, that objections sometimes lie cer, he would remark, that this is an offence of many against the details being made too specific. If the shades. It has been shown by the articles, that not reasoning which had been already urged by the aconly mutinous, but disrespectful words, are punisha- cuscd, had been urged with success, it would be scen ble; but it must be shown to whom they are applied. that the articles of war are specific on this head. The "The law of congress has specified the persons the charges must be specified minutely; they must be president of the United States, co: ress, the chief furnished to the prisoner, and are to be regarded as magistrates and legislatures of states, and commandma!terabic. We are told that this is a rule intenjag officers towards whom disrespect is made pered for the benc.it of the Qocad, and if le consent so
waive it, no subsequent objection can be taken on analogy could exist between the proceedings before the ground of its violation. Ile would only make this them and a court of civil law. The only inode which simple remark on this point. Is it reasonable that, if was left to the accused was to except against the the court has been found to have gone on in a course charge itself. The legal consequence of a demurrer of error, that the accused should be gravely asked to is confined to a court of common law. No other waive the benefit of the law, by giving up a point court, in its practice, admits this consequence. In which that law has introduced for his benefit? The the court of chancery it is, in fact, completely dis right of the prisoner to be served with the charges, is pensed with; when the demurer is overruled, you an inportant circumstance; as it shows him the par- go on to answer to the facts. Instead of being called ticulars of the offence aHeged, and, at the same time, demurrer, in the old Roman law, it is called excepenables him to refer to the article of war under tion; and varies, in its consequence, from a demurwhich it is made punishable, . The terms which de- rer; and this kind of exception is neither peremptory scribe the offence are supposed to be a sufficient or declamatory. In Scotland, before the issue is guide in this respect. It is also an important right pleaded to, the accused pleads to the libel, which is that he should be supplied with a list of the with similar to a demurrer, precisely as was the ease in nesses against him, because it puts it in his power to the old Roman law. produce counteracting evidence, or, if he shall find It is, therefore, a clear right of a prisoner, before it necessary, to assail the credit of those witnesses a court martial, to take exceptions-and the time who may be brought against him. There are three most proper for the exercise of this right, is that authorities who sustain the view which the accus- when, in common law, you would plead a demurrer. ed has taken. The judge advocato, however, had It might, perhaps, be contended that, in common brought forward, in support of his argument, the au- law, if a prisoner pleads to the general issue, he canthority of sir Charlos Morgan, the judge advocate of not plead to an exception. England, who doubts the application of this law, but In some form or other, the court will see that there only on the single authority of Tytler. The objection is some offence charged which is defined by law, and of sir Charles Morgan, however, may rather be taken will punish it according to law; and that it is not as an exception to the general rule, rather than a de- merely a transgression of some of the minor deco nial of it. "He does not deny the general rule, which rums which are usually practised in society. dias been so ably laid down by Adye, Tytler and Me He would now proceed to examine whether, in Arthur, but only throws a doubt on the universality the absence of any criminal charge in the specificaof its application.
tions, any charge had been made out which was sysa The accused proceeded, in the next place, to take tainable. a view of that part of the argument of the judge ad The 2nd charge had already been commented on, vocale, which laid down an analogy between the at some length, when the objections against it were proceedings before courts martial and those at com- formerly urged by his counsel. This charge is, in inon law, on the subject of demurrer and taking terms "insubordinate conduct, and conduct unbeissue on the indictment. The plea which the accused coming an officer." The first question which asked had put in of "not guilty," the judge advocate bad for some consideration, was the precise meaning of contended, prevented him from objecting against a this charge, and, after much deliberation and inquiry. supposed informality in the proceedings; the former it was apprehended that it amounted to nothing more being, in fact, the taking issue on the indictment, than a reiteration of the first charge, which is "disoand the latter availing himself of a demurrer against bedience of orders ” It had no other meaning. In the facts charged; both of which the accused could his argument on this subject, the counsel for the acnot do, although he might take his choice of either. cused bad been charged with going into a nice and The demurrer admitted the facts, but objected to the captious verbal criticism. However he might be form; the plea of “not guilty" denied the facts. The disposed to yield to the justice of such a remark, had accused now entered into a minute and technical lc- the criticism related to a matter of only common and gal argument, to controvert the position which the unimportant parlance, he could not agree that it was judge advocate had taken. When the plea was ori- just when applied to a case in which so many conginally put in, it was put in with a protest, reserving sequences were involved as in the present charge. It all exceptions to the form. It was understood by had been said, that this effort of philological ingethe court that the plea of a general issue could not be nuity was intended to show that every word ought to taken as a waiver of such exception. But it has be used in its radical or primitive sense. It had not been objected, that this exception could not be taken been intended, however, to show that wherever a up but as a demurrer-a demurrer which admits the word had received, by the usages of society, a dif truth, and must lead to a verdict of guilty. It was ferent meaning from its primitive sense, that such utterly impossible, under these circumstances, to meaning was necessarily incorrect He had not take advantage of a demurrer, and, therefore, the forgotten the remark of a witty logician, which alobjections were withdrawn. The accused protested lowed even the coining of new words to render the against this course of exception, as taking the matter construction of a sentence more perfect. The acfrom the broad basis of right and wrong, on which cused would never quarrel, in common utterance, it ought to rest, and placing it on a mere form of with the use of the word "insubordinate.” Subordispecial pleading. One of the most extraordinary nate and insubordinate have been used in a sense reconclusions which had been made by the judge ad-ferring to a regular gradation of rank; but it is a quesvocate was that, because it is not in the power of the tion, whether it bas ever been used to signify any accused to make a motion exactly similar to that in lapse of viriue, or to coostitute a charge of crimes. common law, to quash the indictment, his exception The counsel for the accused had been misunderstood must be taken as a demurrer. If you demur, you ad-' if he was supposed to bave objected to the more mit the fact; and, if the demurrer is overruled, you word as one of common use; but he contended, justls, are found guilty.
that it was a term inadmissible in a criminal charge, (The lechnical argument into which the accused The learned judge adrocate had exercised much inthen went on the subject of demurrer, arrest of judg-dustry and ingenuity in finding authorities for the use ment, &c. we understood too imperfectly to attempt of' ihe words "insubordinate" and "subordinate." 10 to give an abstract of it to our readers.]
was admitted that "insubordination" had acquired a The law has, in the constitution of a court martial, more extended meaning that its correlative adjective, reated in the same persons, the offices of judge and "insubordinate.” But still it admits of this meaning juror. These must be separated before a strici -"disobedience of orders." Judge Marshall, in the